By Sandra Sunil
Recently, the Kerala High Court quashed the proceedings against a woman from a criminal case for making a video of her minor children painting her bare breasts titled ‘Body Art Politics.' The Petitioner, a social activist, defended her action as a form of self-expression and an attempt against the social and cultural norms that always sexualized a woman's body. But this created a massive outrage as society viewed this as vulgarity and Obscenity, especially for subjecting her minor children to the same. A Police case was registered against the Petitioner due to the public outcry. Even though she was released on bail, her application for discharge of charge under Section 227 of Cr.PC was dismissed by the lower Court on the ground that there was insufficient ground to proceed against her.
Legal Provisions
Sections 13, 14, and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO)
Section 67B (d) of the Information Technology Act, 2000
Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).
Arguments
The Petitioner's counsel argued that the video should be viewed with its accompanying message, which clarified the Petitioner's intention to promote the normalization of the female body and discourage distorted notions of sexualization among children. Additionally, they aimed to challenge the societal double standard that excessively sexualizes the female body while treating the male body differently. In addition to the lack of substantial reasons to pursue charges against the Petitioner, the counsels contended that nudity depicted through body art is a form of expression protected by Article 19(1)(a) and Article 21 of the Constitution.
The Senior Public Prosecutor, T.V. Neema, contended that the video portrayed a sexually explicit act involving a child. The footage was morally corruptive and thus subject to public order, exception of freedom of expression. According to their argument, the Petitioner's minor son was involved in touching her breast and other parts of her body to create a drawing. At the same time, the Petitioner's posture and gestures suggested sexual intention and gratification. Furthermore, it was stated that if the law prohibited the specific use of children in a particular manner, such prohibition should not be violated under the pretext of protest.
Findings
The “Double Standard” of nudity
Court looked down on the double standard in society, where a man's bare chest is normalized while a woman's breasts are sexualized. The male body's autonomy is rarely challenged, whereas the freedom and self-determination of women's bodies are constantly endangered within a patriarchal system. Women face bullying, discrimination, social isolation, and legal persecution when they exercise their right to make decisions regarding their bodies and lives.
During the 'Pulikali' festivals in Thrissur, Kerala, it is customary to perform body painting on men as part of the tradition. In conjunction with the performances of 'Theyyam' and other rituals at the temple, male artists have their bodies painted. It is prevalent to see men walking shirtless, and their body features like six-packs and biceps are often displayed and appreciated. Such acts are normalized and are never considered sexual. On the other hand, a woman’s naked body is viewed only in an erotic manner as an object of sexual gratification. Court also observed that the intention behind the Petitioner's act was to expose such double standards of the society.
The Court also emphasized that a woman's fundamental right to equality and privacy is rooted in her ability to make choices about her body independently. Furthermore, this right aligns with personal liberty protected under Article 21 of the Constitution.
Sexual Intent Behind the Act
Court opined that the presence of sexual intent is essential to invite all the charges against the Petitioner. Not only that the video was found to be a shout-out to the double standards that exist in society regarding body autonomy, but the Court also looked into the long history of the Petitioner in her fight against patriarchy and the sexualization of women in society. The video should be viewed from that perspective only. Court opined that through the video, one could see the children painting 'with utmost professional concentration,' which indicates no sexual motive behind the same. Also, the children have not complained about sexual exploitation against them. The Court also held that every parent is entitled to nurture their children according to their preferences. Children do not naturally develop a sense of right or wrong unless instilled with such notions. This video should only be viewed in such a sense.
Section 13
On analyzing the Petitioner's liability under Section 13 of POCSO Court observed that, according to the allegation, it cannot be concluded or suggested that the children were involved in any actual or simulated sexual activities for the purpose of sexual pleasure. The Petitioner permitted her children to use her body as a canvas for painting, which doesn’t imply any sexual motive. The fundamental right to equality and privacy includes a woman's ability to make independent choices about her own body, which is protected by Article 21 of the Constitution and is a fundamental aspect of personal freedom. As the provision of Section 13(b) can only be attracted if a child is used in any form of media for sexual gratification, the Petitioner cannot be held liable.
Section 15
Concerning Section 15 of POCSO, which imposes a penalty for storing pornographic materials of a child, the children in the video were not naked. They were not indulging in any sexual or obscene acts but were doing only artistic work. Such a harmless act cannot be said to have a sexual motive behind it. Pornography of any manner couldn't be observed in this case, which implies the non-application of Section 15.
Section 67B of the IT Act
The Court's ruling emphasized that for the offenses under the IT Act to apply, the act in question must be sexually explicit, obscene, or indecent, which was not the case in this situation. The video was created to protest against the automatic sexualization of the female bare upper body needed to display nudity to convey its message effectively. However, such depiction of nudity does not make the material legally obscene or indecent. There is no reason to believe that an ordinary person viewing the video would be corrupted, degraded, or encouraged towards lasciviousness. Technically speaking, the Petitioner did not reveal her bare chest, as her breasts were covered by body paint. This cannot evoke any sexually explicit feelings in the mind of a reasonable person.
Furthermore, the video should be evaluated in the context in which it was made and with consideration of the message it aimed to convey – that there is nothing sexual or offensive about the female naked body. When viewed from this perspective, it cannot be argued that the video is obscene or indecent just because it depicts the Petitioner's bare upper body. As the Petitioner aptly reasoned in the accompanying write-up, Obscenity, like beauty, is subjective and lies in the viewer's perception.
Section 75 JJ Act
The offense outlined in Section 75 of the JJ Act was also deemed inapplicable as there was no evidence of child assault or abandonment, which is a requirement under the provision. Moreover, the Court recognized that prosecuting the Petitioner would have a detrimental impact on the children involved. Therefore, allowing the proceedings to continue was not in their best interests
The decision of the Court
"In conclusion, I have no hesitation in holding that the final report does not support or even draw a prima facie case for any of the statutory offenses as alleged. The Court below completely overlooked the context in which the video was published and its message to the public. There is no sufficient ground for proceeding against the Petitioner."
The High Court stated that nudity and Obscenity do not always have the same meaning, and it is incorrect to label nudity as inherently obscene, indecent, or immoral.
The Judge, Kauser Edappagath, asserted that society's morality and individual sentiments should not be the basis for accusing someone of a crime and initiating prosecution. It is permissible as long as an action does not contravene any existing laws. The Judge emphasized that concepts of social morality are inherently subjective, and morality and criminality are not always synonymous. Just because something may be considered morally wrong does not necessarily mean it is illegal, per the Judge's statement.
Previous Judgements
Picture of nude women per se not obscene: Aveek Sarkar vs. State Of West Bengal[1]
The internationally circulated German magazine "STERN" released an article featuring a photograph of Boris Becker, a globally recognized tennis player, in a state of nudity alongside his fiancée Barbara Feltus, an actress with a dark complexion. The image in question, which Feltus' father took, was republished by two publications labeled as obscene. In a contemporary interpretation of the 154-year-old provision of ‘obscenity' in the Indian Penal Code, the Supreme Court has determined that the publication of a woman's nude picture does not automatically qualify as obscene under the IPC or the Indecent Representation of Women (Prohibition) Act, 1986. The Court stated that only sexually explicit materials capable of arousing lustful thoughts can be considered obscene. However, the assessment of Obscenity should be based on an average person's perspective, considering contemporary community standards. The Court also highlighted the importance of considering the background in which the picture was displayed and the message it aimed to convey to the public and the world. In this case, the photograph aimed to promote the idea that skin color should not be a significant factor and love should triumph over such differences.
Nudity isn't Obscenity; it's just art: Maqbool Fida Husain v. Raj Kumar Pandey.[2]
Maqbool Fida Husain, a renowned painter, created a notable artwork titled "Bharat Mata" (Mother India), portraying India as a nude female figure. The painting was sold to a private collector in 2004. Two years later, in 2006, the picture was included in an online charity auction to raise funds for earthquake victims. However, the advertisement of the artwork sparked protests, and complaints were lodged in different regions of India, expressing discontent and offense towards the depiction. Justice Sanjay Kishan Kaul's landmark judgment not only upholds justice for a recognized national symbol but also offers insightful and accurate observations regarding the significance of art in our society. The Judge quotes Picasso, “Art is never chaste.". He also refers to ancient Indian Art, where the union between man and woman was a recurring subject, evident from the sculptures of old Indian Temples. The Judge recognized the enduring nature of depicting nudes in art and acknowledged that certain paintings had been labeled offensive or immoral. However, the Judge emphasized the importance of considering art from the artist's point of view, emphasizing the connection to their subjective reality and perceptual experience.
Breastfeeding Women on Magazine Cover Not Obscene: Felix M.A. v. Gangadharan P.V.[3]
The cover of Grihalakshmi magazine, released in March 2018 in the state of Kerala, showed Gilu Joseph, a model, looking directly at the camera while holding a baby to her chest. The title stated, "Moms tell Kerala - don't stare, we want to breastfeed." The intention behind this was to bring attention to the importance of allowing mothers to breastfeed in public. However, the publication of the cover sparked significant controversy, with some readers considering it inappropriate. The Kerala High Court declined to declare the magazine cover as indecent. In its ruling, the Court highlighted that there was no vulgarity in the picture and compared it to the artwork of renowned artists like Raja Ravi Varma. Additionally, the Court expressed the opinion that perceptions of Obscenity can vary from person to person, stating, "As the beauty lies in the beholder's eye, so does obscenity, perhaps." Furthermore, the Court noted that throughout the history of Indian art, from the Ajanta paintings to the Kamasutra, there has been a consistent appreciation and celebration of the beauty of the human body. The Court highlighted that even the tradition of yoga revolves around the idea of perfecting the body. In this context, the Court argued that a picture depicting a woman breastfeeding her baby should be seen as a celebration of the beauty of the human body and a means to make her feel comfortable rather than being deemed indecent.
Why is this decision important?
The recent judgment is essential, especially in the contemporary world. Our society is taking baby steps away from patriarchy, and this decision can be considered a massive step in that journey. Ever since forever, double standards have existed for men and women in all fields in and around us. Men can freely display their bare chests in public, while women are required to wear multiple layers of clothing due to societal expectations regarding the sexual nature of their bodies. Women's bodies are frequently objectified and viewed primarily in a sexualized manner, resulting in the perception that their nudity is inappropriate rather than simply being a natural state. This reason for objectifying the female body has resulted in various sexual crimes against women in Indian society, as patriarchy always viewed women and their bodies only as property rather than individuals.
In a legal sense, the decision highlights the significance of considering the larger context and purpose of action when evaluating its legality and impact on society. It acknowledges the right to question societal expectations and inconsistent standards through artistic forms of communication. Furthermore, it emphasizes redefining societal attitudes towards nudity and how the female body is perceived.
The appellant's act should be considered a political statement to question society's tendency to sexualize the female body while perceiving the male body as non-sexual by default. Justice Edappagath also resonated while expressing that the children painting on their mother's body as part of an art project should not be regarded as an actual or simulated sexual act, nor an action driven by sexual satisfaction. The Court interpreted the act as a harmless form of artistic expression and opposed the prosecution's claim that it was obscene or indecent. Such acts and assertions are necessary to normalize a female body, especially for children.
Every person has the right to control their own body, regardless of gender. However, we frequently observe that this right is diminished or denied to women. Women face bullying, discrimination, social isolation, and legal consequences when they make decisions about their bodies and lives. Nudity should not be tied to sex but should always be considered personal. This decision is a progressive reaffirmation that hopes for a better future for womanhood. Let us hope that a society that discriminated against, prosecuted, and banned women from communities for making decisions about their lives and bodies, would soon welcome womanhood and their wonderfulness.
The author of this article is Sandra Sunil, a fifth-year BALLB student at The National University of Advanced Legal Studies, Kochi.
[1] Aveek Sarkar & Anr vs. State Of West Bengal And Anr (2014) 4 SCC 257
[2] Maqbool Fida Husain v. Raj Kumar Pandey MANU/DE/0757/2008
[3] Felix M.A. v. Gangadharan P.V & Ors. MANU/KE/1675/2018
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
Comments